Thursday was destined to be an historic day for American liberty, and it was, though the new precedent is grim. The remarkable decision upholding the Affordable Care Act is shot through with confusion—the mandate that's really a tax, except when it isn't, and the government whose powers are limited and enumerated, except when they aren't. One thing is clear: This was a one-man show, and that man is John Roberts.

The Chief Justice ruled that ObamaCare's mandate violated the Commerce Clause, joined by the Court's conservative bloc, but he also said that the mandate fell within Congress's power to tax, joined by the Court's liberal bloc. In practice this is a restraint on federal power without real restraint—and, worse, the Chief Justice had to rewrite the statute Congress passed in order to salvage it. The ruling will stand as one of the great what-might-have-beens of American constitutional law.

The novel question raised by ObamaCare's command to buy health insurance or else pay a penalty—the first-ever purchase mandate in U.S. history—was whether Congress could create commerce in order to regulate it. In his 1-4-4 opinion, Chief Justice Roberts writes that construing the Commerce Clause as the Obama Administration argued "would open a new and potentially vast domain to congressional authority. . . . The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding."

Note that this rejection of federal compulsion, which the four conservatives supported albeit in dissent, is the same one that the liberal legal establishment spent years deriding as frivolous and beyond debate: Of course Washington has carte blanche to do whatever it wants to do. "That is not the country the Framers of our Constitution envisioned," the Chief Justice writes, before going on to envision it himself by grounding the mandate in Congress's power to "lay and collect Taxes."

According to Chief Justice Roberts, the penalty is merely a tax on not owning health insurance, no different from "buying gasoline or earning income," and it thus complies with the Constitution. This a large loophole. The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it calls them something else and judges call them taxes.

That was true with ObamaCare. The Pelosi Democrats explicitly structured the mandate as a regulatory "penalty." Congress voted down a direct tax in 2009. Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.

Every lower court that heard the health-care cases rejected the taxing argument. Administration lawyers devoted only 21 lines of their reply brief to this argument and it barely came up at oral arguments. The Chief Justice in effect revised the statute in order to find it constitutional.

But if the mandate is really a tax, why doesn't the law known as the Anti-Injunction Act apply, which says that taxes can't be challenged legally until they've been collected? The Chief Justice actually rules that the mandate is a tax under the Constitution and a mandate for the purposes of tax law.

In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice's logic "is not to interpret the statute but to rewrite it. . . . One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression." They score the Chief Justice for carrying "verbal wizardry too far, deep into the forbidden land of the sophists."Justice Kennedy dissented angrily from the bench, and it is to his credit that he defended the federalist system of shared powers that is the hallmark of his years on the Court. The particular tragedy is that four Justices would have overturned not merely the purchase mandate but all of ObamaCare as unconstitutional. Only John Roberts prevented it.

One telling note is that the dissent refers repeatedly to "Justice Ginsburg's dissent" and "the dissent" on the mandate, but of course they should be referring to Ruth Bader Ginsburg's concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court's institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall's legacy, the result is closer to William Brennan's.

The Court did rule 7-2 against ObamaCare's expansion of Medicaid, the supposedly voluntary federal-state program that once covered only the poor. The majority included liberal Justices Stephen Breyer and Elena Kagan, who held this expansion to be unconstitutional because the feds commandeered state resources.

The problem is that this also involved rewriting the law. The majority merely created an opt-out that Governors and states could elect to preserve some measure of independent control, instead of telling Congress to start over. Still, this is the first time the Court has found a law enacted under Congress's spending power to be unconstitutionally coercive.

But this and even the five votes limiting Congress under the Commerce Clause pale against the Chief Justice's infinitely elastic and dangerous interpretation of the taxing power. Nancy Pelosi famously said we need to pass ObamaCare to find out what's in it. It turns out we also needed John Roberts to write his appendix.

The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government's caption should have read was "ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX." It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

In answering that question we must, if "fairly possible," construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. "[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it." In this case, there is simply no way, "without doing violence to the fair meaning of the words used," to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

Our cases establish a clear line between a tax and a penalty: "[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act." In a few cases, this Court has held that a "tax" imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act "adopt the criteria of wrongdoing" and then imposes a monetary penalty as the "principal consequence on those who transgress its standard," it creates a regulatory penalty, not a tax.

So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in [the Affordable Care Act's individual-mandate provision], §5000A, entitled "Requirement to maintain minimum essential coverage." (Emphasis added.) It commands that every "applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage." (emphasis added). And the immediately following provision states that, "f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty." (emphasis added). And several of Congress' legislative "findings" with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. . . .

We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as "license" or "surcharge." But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a "penalty." Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a "penalty." . . .

Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 "defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue." We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government's opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. At oral argument, the most prolonged statement about the issue was just over 50 words. One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

This may seem a little technical, but it is necessary. So follow along with me. A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case "limited" the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration's ridiculous argument that inactivity is commerce. The status quo stands. However, the bigger point is this.

When a court issues an opinion, it is said to be the "Opinion of the Court." The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).

But respecting Parts III- A, the commerce clause and necessary and proper section, Roberts is writing for himself, not for a majority.

Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is Not labeled as “dissenting in the judgment, concurring in part” or some permutation.

You can’t say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which isn’t formally joined Robert’s writing), is writing for itself.Justice Thomas, in his separate dissenting opinion, wrote: “The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”

Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause (or necessary and proper clause).If five justices had intended for their view of the commerce clause (and necessary and proper clause) to be controlling as the majority view, they would have said so by joining or concurring in each others' parts. They didn't. So, while we can cobble them together, as a formal legal matter, it is a troubling issue. While the status quo stands re the commerce clause (and necessary and proper clause), there was no formal majority on those issues.

Logged

"You have enemies? Good. That means that you have stood up for something, sometime in your life." - Winston Churchill.

This may seem a little technical, but it is necessary. So follow along with me. A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case "limited" the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration's ridiculous argument that inactivity is commerce. The status quo stands. However, the bigger point is this.

I completely agree. However, it is also the case that by ruling in this fashion, the USSC continued a status quo that itself limited the reach of the Commerce Clause, at least as compared to prior precedent coming in the New Deal, Warren and Burger Courts. The Rehnquist Court moved to retract the limits of the CC. See http://articles.latimes.com/1995-04-27/news/mn-59611_1_supreme-court for an example.

When a court issues an opinion, it is said to be the "Opinion of the Court." The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).

Mostly true. The Opinion of the Court is as controlling as the author and subsequent users want it to be. Sometimes, the Court takes great pains to limit the precedential value of the opinion. See Bush v. Gore. And, there is the idea that only the central holdings are precedent, not the extra portions of the opinion, which are called dicta. What consitutes dicta is often decided by the future court, not the author of a particular opinion.

But respecting Parts III- A, the commerce clause and necessary and proper section, Roberts is writing for himself, not for a majority.

Yep.

Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is Not labeled as “dissenting in the judgment, concurring in part” or some permutation.

Yep.

You can’t say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which isn’t formally joined Robert’s writing), is writing for itself.Justice Thomas, in his separate dissenting opinion, wrote: “The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”

Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause (or necessary and proper clause).If five justices had intended for their view of the commerce clause (and necessary and proper clause) to be controlling as the majority view, they would have said so by joining or concurring in each others' parts. They didn't. So, while we can cobble them together, as a formal legal matter, it is a troubling issue. While the status quo stands re the commerce clause (and necessary and proper clause), there was no formal majority on those issues.

A point worth noting. A better way to word the position might be that it is the "opinion of a majority of the court" (note: wording matters; NOT "majority opinion of the court" which connotes what Levin is pointing out is a fallacy).

When the Supreme Court of the United States announces on Thursday its decision regarding the constitutionality of the Affordable Care Act, the meaning and continuing vitality of Wickard v. Filburn (1942) is likely to be a central topic in the Justices’ opinions.

In the 1930s and later, Roscoe Filburn owned and operated a small farm in Montgomery County, Ohio. He maintained a herd of dairy cattle, sold milk, raised poultry and sold poultry and eggs. Filburn also raised a small acreage of wheat. He sold some of this wheat, used some to feed his poultry and livestock, used some to make flour for home consumption, and used some for future seeding.

In 1938, Congress passed and President Roosevelt signed the Agricultural Adjustment Act. Seeking to stabilize farm prices, the Act authorized the U.S. Department of Agriculture to control the volume of commodities such as wheat that moved in interstate and foreign commerce, thereby avoiding surpluses and shortages and resulting low and high prices.

In 1940, the Department of Agriculture established a “marketing quota” for Filburn’s 1941 wheat crop. It authorized him to plant 11.1 acres that would yield an estimated 223.11 bushels of wheat. Filburn nonetheless sowed 23 acres. His 11.9 “excess” acres yielded 239 bushels. In response, the Secretary of Agriculture fined Filburn $.49 per excess bushel—$117.11 in all. He refused to pay. He then filed a lawsuit in federal court, alleging that the Act’s wheat marketing quota provisions, which applied even to wheat that a farmer grew wholly for home consumption, exceeded Congress’s constitutional power “[t]o regulate Commerce … among the several States….” U.S. CONST., Art. I, sec. 8, cl. 3 (“the Commerce Clause”).

In November 1942, the Supreme Court unanimously rejected farmer Filburn’s constitutional argument. Justice Robert H. Jackson wrote for the Court—Wickard v. Filburn is one of his earliest and most enduringly famous Supreme Court opinions.

The crux of the Wickard decision was the Supreme Court’s understanding that Filburn’s “home-growing”—his not-buying the excess wheat that he desired to have—was commercial activity in the interstate market for wheat. As Jackson explained, even wheat that is

never marketed … supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the [constitutionally-authorized Congressional] regulatory function quite as definitively as prohibitions or restrictions thereon. This [case’s] record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of [statutory] regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

The Court also dealt, directly, with Filburn’s policy objection to a law that forced him to buy what he wished not to buy:

It is said … that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers [i.e., big-time wheat farmers]. It is the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do.

To read Wickard v. Filburn, 317 U.S. 111 (1942), in full, click here.

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More than a month later, Justice Jackson received an insightful letter from his friend Sherman Minton, a former U.S. Senator who had become a U.S. Circuit Judge:

New Albany, Ind. Dec 17 1942My dear Bob —

This is a letter from one friend to another—not from a judge of an inferior (very inferior) Court to a Justice of the Supreme Court. I just finished reading your very interesting opinion in Wickard vs Filburn. On page 6 [317 U.S. at 120] you state “Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof.”

I venture to suggest that U.S. vs. Wrightwood Dairy 315 US. 110 [(1942)]is in conflict with that statement. In that case the dairy regulated didn’t produce or buy a drop of milk outside of Illinois. All its milk was produced in Illinois. It was processed wholly within Illinois and never touched a drop of milk from outside the state. It was all sold + intended to be sold in Illinois. And the Supreme Court held it could be regulated because it competed with interstate milk.

We are shifting our base + to make it appear that we are not we change the words we use. For instance on page 10 of the same opinion [317 U.S. at 125] you say a matter may be regulated by Congress “if it exerts a substantial economic effect on interstate Commerce,” as against the old test of whether it affects directly or indirectly interstate commerce. I am afraid we will have as much trouble applying your test as the old one.

What a pity U.S. v. Butler [(1936)] was ever written + we didn’t, so far as agriculture is concerned, assume to regulate it + subsidize it under the Welfare Clause instead of the Commerce Clause. Then we wouldn’t have to do so much shadow boxing to get around old opinions.

If we are going to adopt the unlimited concept as to interstate Commerce why not say so + throw in the ash can the old cases that disagree[?] Let’s be brutally frank.

I suppose I am wrong and you are right—I never did have any finesse.

Whether one agrees with you or not one must admit that you write the clearest most readable opinions of all.

Sorry I didn’t have time to visit with you personally when I was in Washington.

With all good wishes for the holiday season, I am,

Sincerely yours

Shay Minton

Justice Jackson promptly wrote back to Judge Minton (who seven years later would join Jackson on the Supreme Court). Jackson’s letter makes clear that he—the Court—meant Wickard v. Filburn to be the statement of judicial deference and restraint that it has, in all the years since, come to be in U.S. constitutional law:

December 21, 1942

Honorable Sherman MintonU.S. Circuit Court of AppealsNew Albany, Ind.

Dear Shea [sic]:

I am glad to have your letter and sorry that we did not have a chance to chat longer when you were here.

You are right in criticizing the sentence in my opinion in the Wickard case. Of course what I meant to refer to was exclusive of the competition theory which I dealt with later under the general discussion of the Shreveport [(1914)] doctrine.

If we were to be brutally frank, as you suggest, I suspect what we would say is that in any case where Congress thinks there is an effect on interstate commerce, the Court will accept that judgment. All of the efforts to set up formulae to confine the commerce power have failed. When we admit that it is an economic matter, we pretty nearly admit that it is not a matter which courts may judge.

However, in the Wickard case the effect is easily apparent, although whether the effect is good or ill might be difficult to say. There is probably a good deal of wisdom in the policy of our earlier judges in going only so far as the immediate case requires in making a constitutional decision. I admit, however, that if I could have found a more satisfactory formula, I would have come out with it, and I know that the Wickard case is by no means a simple or satisfactory solution. I really know of no place where we can bound the doctrine of competition as expounded in the Shreveport, the Wrightwood, and the Wickard cases. I suppose that soy beans compete with wheat, and buckwheat competes with soy beans, and a man who spends his money for corn liquor affects the interstate commerce in corn because he withdraws that much purchasing power from that market. The Shreveport case and those that follow seem to me to be best understood as a sort of strategic retreat by the courts from the effort to control the action of Congress in the field of interstate commerce.

I always read your opinions with interest, and from them I gather, although it is only from between the lines, that you are really enjoying judicial work. It is quite a violent change from the kind of life you and I had been leading, but it certainly has its compensations.

When you are in town, I hope you will come in and see me.

Sincerely yours,

[/s/ Robert H. Jackson]

Twelve years later, just before his death, Justice Jackson wrote three lectures that he had agreed to deliver at Harvard University in 1955. In one, he reiterated his broad view of the national power that the Commerce Clause confers:

There can be no doubt that in the original Constitution the states surrendered to the Federal Government the power to regulate interstate commerce, or commerce among the states. They did so in light of a disastrous experience in which commerce and prosperity were reduced to the vanishing point by states discriminating against each other through devices of regulation, taxation and exclusion. It is more important today than it was then that we remain one commercial and economic unit and not a collection of parasitical states preying upon each other’s commerce. I make no concealment of and offer no apology for my philosophy that the federal interstate commerce power should be strongly supported and that the impingement of the states upon that commerce which moves among them should be restricted to narrow limits.

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As always, thank you for your interest and please share this with others.

The Chief Justice's ObamaCare ruling is far from the check on Congress of right-left myth.

The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.

Now that we've had more time to take in Chief Justice Roberts's reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.

This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation—and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.

It's an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts's own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system.

***His first error is the act of rewriting the plain text of a law, instead of practicing the disinterested interpretation that is the task of the judiciary, regardless of the partisan outcome. The second error is converting the health insurance mandate's penalty into a tax. Ninety years of precedents have honed precise and widely divergent legal meanings for taxes and penalties for violating laws or regulations, and they are not interchangeable.

The Chief Justice did not simply change a label—as if Congress said something was a penalty when it was really a tax. Rather, these categories are defined by their purposes and effects, by how they operate in practice. Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law. The boundaries can blur—legitimate taxes may also have strong punitive aims—but scarcely so in this case. ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.

Even if Democrats had passed the mandate tax as rewritten by the Chief Justice, and they did not, the Supreme Court until Thursday has never held that Congress can call anything it wants a tax. The taxing power like the Commerce Clause is broad, and the courts are generally deferential. But all powers the Constitution enumerates are also limited, and these limits—unique to each power—must be meaningful and enforceable by the legal system.

The Chief Justice's compounding errors deprive the taxing power of any viable limiting principles. Article I, section 8 gives Congress an independent grant of power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Taxes must originate in the House, the political body designed to be most responsive to voters. There are also important additional safeguards on the type of exactions known as "direct taxes."

Indirect taxes—"duties, imposts and excises"—are taxes on activities and products. They are passed on by a seller, triggered by a transaction and more or less optional: Consumers don't have to buy taxed goods and services. Direct taxes, on the other hand, are those that the federal government is empowered to impose on individuals as citizens. They cannot be avoided because they are levied on the existence of people.

America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.

***That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power. The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society.

Chief Justice Roberts concedes that "Congress's ability to use its taxing power to influence conduct is not without limits" and that in the 19th and early 20th centuries the Supreme Court "policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority." But then he writes that "more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures."

His error—or more likely, his deliberate sleight-of-hand—is that this modern jurisprudence does not deal with direct taxes but indirect taxes and income taxes. Income taxes were authorized in 1913 by the Sixteenth Amendment, which was necessary to bypass the other important limit on direct taxes, called apportionment.

The Constitution says that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Colloquially, direct taxes are known as head taxes and they must be spread among the states according to population. Apportionment's onerous limits were meant to protect against abuse and sectional favoritism. If Congress uses direct taxes, the residents of South Carolina will pay the same overall share as Massachusetts, and so forth.

But apportionment would defeat the mandate tax's "whole point," the Chief Justice writes, since every state will have a different percentage of citizens that are uninsured. So he cryptically rules that "A tax on going without health insurance does not fall within any recognized category of direct tax."

But if not a direct tax, then what kind of tax is it? It is not an indirect tax because it applies to a failure to purchase something, what the Chief Justice calls "an omission," not an optional transaction. It is not a tax on income because that merely hits "accessions to wealth," not what people choose or choose not to do with those accessions.

The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.

In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.

The Chief Justice seems to understand this, so he tries to articulate his own new limiting principle for the tax power. His mandate tax isn't a mandate but merely a suggestion: choose to buy insurance or "pay money into the Federal Treasury, no more," an act he likens to a tax on gasoline. He also temporizes that "taxes that seek to influence conduct are nothing new."

True enough, but the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.

***The John-Roberts-as-Daniel-Webster school argues that the long-term limits on the Commerce Clause and other aspects of the ruling are a good trade for the loss of upholding ObamaCare, and government excess has now reached its high-water mark and will recede over time. That false hope seems unlikely given the subversion of the taxing power and unleashing a general federal police power. This is equally harmful to liberty and dual sovereignty.

One possible saving grace is that this center-right country remains suspicious of taxation, and therefore the Chief Justice increases accountability somewhat through truth-in-labeling. But note how Democrats are already claiming that the ObamaCare mandate is not really the tax that is the only reason it was upheld.

White House chief of staff Jack Lew said Sunday that "The law is clear. It's called a penalty." Neither sentence is true. On Friday, the Obama re-election "truth team" was even less subtle in a memo titled "They're lying about ObamaCare" that made the same claim. Chief Justice Roberts has created a creature that is not a tax for political purposes but is a tax for constitutional purposes.

Chief Justice Roberts's ruling is careless about these bedrock tax questions, and they are barely addressed by either the Court's liberal or conservative wings. His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

CBS News’ Jan Crawford is reporting that Chief Justice John Roberts originally sided with the Supreme Court’s four conservative justices to strike down the heart of Obama’s health care reform law, often referred to as “Obamacare,” but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

CBS continues (all subsequent emphasis added):

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.And while the Supreme Court is notoriously secretive– no law clerks or secretaries are allowed in the room when the justices discuss cases and cast their initial votes– Roberts’ drastic shift was noted in this closely-watched case.

CBS explains a possible reason for the change of heart:

[Unlike some other justices] Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.Others maintain that Roberts just came to realize the historical impact of striking down such a law, and political pressure had nothing to do with it.

But CBS continues:

Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as “arm-twisting.”

Even in Roberts’ opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy’s vote. Roberts even used some of the same language that Kennedy used during oral arguments.

[...]In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn’t give up until the very end.The story also says that the conservative dissent was not originally written as a majority opinion, as some have thought, but reads differently than expected because the conservatives simply refused to acknowledge Roberts’ opinion.

The article concludes with Kennedy’s strong statement from the dissent: “The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril…Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”

National Review Online’s Avik Roy said of the revelation: “The bottom line, if Jan Crawford is right, is that conservative justices can be blackmailed by left-wing editorialists. It’s not a pretty picture.”

"[A]t the risk of being a broken record [on ObamaCare], we remain focused on the wrong issue because conservatives and Republicans do not want any part of the right issue. Congress would not be able to tax anyone a penny if the subject matter on which lawmakers sought to spend the money raised was not within Congress's constitutional authority to address. Health care and health insurance are precisely such issues. So why does Congress get to raise taxes for and spend money on them? Because the country -- very much including Republican leaders and many conservatives -- has bought on to the wayward progressive premise that the General Welfare Clause of the Constitution empowers Congress to spend on anything it wants to spend on as long as their is some fig-leaf that ties the spending to the betterment of society. That, and not an inflated understanding of the Commerce Clause, has always been the problem. Republicans are afraid to touch this because, if you follow the logic, you'd have to conclude that Congress has no constitutional authority to set up a social security system, a Medicare or Medicaid program, or most to the innumerable Big Government enterprises that Republicans support while, of course, decrying Big Government. Republicans occasionally want to limit what government spends, but they don't want to acknowledge any constitutional limits on what government could spend -- that's what has gotten us to this point." --columnist and former DoJ attorney Andrew McCarthy

I took a cooling off period following the Obamacare stunner and I am still fuming mad.

1) This point of Bigdog's is most insightful: "...it is the "opinion of a majority of the court" (note: wording matters; NOT "majority opinion of the court..."

I still have more reading to do, but 5 justices did not agree on much. 5 so-called conservatives found a limitat in the commerce clause but that revelation turns out meaningless as a new path is paved to make the biggest expansion EVER in government control of and participation in commerce without 5 justicec relying on the commerce clause.

2) My neighbor's dog barking is taxing. Regulations are taxing on the economy. Can this be ruled a tax? Sure. But that is not what it is.

3) My title "You can't be serious!" comes from the famous John McEnroe line he hollered at chair umpires like Roberts every time they ruled a close line call against him. I still play tennis at a nationally competitive level and have a theory different from Roberts on close line calls. If a ball is a millionth of an inch out and no one but you with your perfect vantage point can possibly see it out, all others see it as in, and even you don't see it out for the first month after you look at it, then you do not call it out. Roberts did not see it as a tax. Proponents didn't see it as a tax. 8 other justices didn't see it as a tax. It wasn't written as a tax. Clever reconsiderations do not make it into what it isn't supposed to be. It includes at least two dozen new taxes and it is most certainly taxing on the economy and on certain people but the act itself is a government takeover of a major sector of the economy with a shift of responsibility of all the the decisions that go with that. In its entirety, it is not a tax, it is commerce control. If it takes you a month to see it as something you couldn't see previously and no one else can see and you still can't articulate why by your publication deadline or convince even one of your peers seeing the same line call, then perhaps it is not. If you must see it as no one else sees it, then write a one justice dissent, not side with people who see it totally differently to decide in favor of a government takeover of the American economy over all individual liberties on a single-justice, manufactured theory.

4) Where are unenumerated rights in the challenge to the law? We had some rights and they are gone. One is a right to the policy I had before Obamacare which is gone, another is the right to merely pay fee for service as we do with almost everything else and yet another would be the privacy to not have to tell the government at all about the private matters of your health services procurement. 55 million have been aborted since Roe v Wade based on a right of privacy in so-called healthcare but when it does not directly enable the killing of the most innocent most in need of protection, the right of privacy is nowhere to be found?

5) Is the default priority restraint from the legislative process or truth to the meanings contained in our limited government constitution.

6) A mandate to buy government approved health insurance is not constitutional, but a penalty on not buying it is. Good grief.

7) The Wichard Filburn point posted is well taken. This is terrible law and a cause or enabler of what keeps going wrong on the Court, IMHO.

7) There is NOT a silver lining in this ruling. Maybe we will rise up and take the law and the tyrants down. Maybe we will not. But the limited government meaning of our constitution just keeps getting ever-smaller and it makes me sick to my stomach.

8.) Romney's adviser did not call it a tax because that would mean Romney's mandate was a tax.

9) Obamacare's effect on the economy however is a trillion and a half dollar tax and worse, yet every economist says you don't raise taxes in a recession. We just did!

In terms of popularity of the Court, no one likes when they rule against you but...

I disagreed strongly with the ruling relating to funeral protests. That said, because they sided with a basic freedom, freedom of speech I perhaps admire them more not less for disagreeing with me. When they tromp all over our individual rights and liberties, that is another matter. I have no respect for them and all their manufactured, hypocritical constructions whatsoever.

At age 78 Justice Kennedy grows a limited government backbone. Where was that in Kelo?

At age 57 Chief Justice Roberts decides he'd rather be a politician. It's not too late your honor to change careers.

Liberal appointees / liberal justices prove over and over and over that they only vote their own political views on the Court.

Restraint in the pursuit of freedom isn't what won any of our freedoms.

That discussion/description on the methodology can be found using the Martin-Quinn scores, a link to which is included in the article, and is http://mqscores.wustl.edu/index.php. A further discussion can be found at http://scdb.wustl.edu/index.php. These are two of the most common databases used by quantative scholars who study the USSC, including political scientists, and an increasing number of lawyers and economists.

President Obama won by losing on Thursday. Yes his health care legislation was upheld but it came at the expense of federal power and perhaps further losses down the line in terms of civil rights and other forms of federal power. The media will report that by a 5-4 decision the Supreme Court affirmed the individual mandate and upheld the Obama Health Care Act. But a tighter and more thorough reading demonstrates this to be a very conservative decision and Obama lost big legally.

But Roberts' tax argument actually undermines his argument about the inapplicability of the Commerce Clause. Roberts reasoned that Obamacare really imposes a mandate only on those subject to its tax penalty—which is limited to those who have thousands (probably tens of thousands) of dollars in earned income. What Roberts seems to have missed is that you cannot have earned income without engaging in commerce. (Gift income does not count as earned income subject to this tax).

"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act." ... "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."

By MICHAEL I. MEYERSON Americans of all political stripes invoked the Declaration of Independence this Fourth of July week. Some read the document and found, as Harvard Prof. Alan Dershowitz has, that it "rejected Christianity, along with other organized religions, as a basis for governance." Others saw the same language proving the opposite, that our nation was founded on "Judeo- Christian values." Such definitive statements do not tell the full story. The American Framers, in their desire to unite a nation, were theologically bilingual—not only in the Declaration of Independence but beyond.

That document was the work of many hands. As is well known, the first draft was written by Thomas Jefferson. That version began with a religious reference that largely remained in the final version, stating that the United States were assuming the independent status, "to which the laws of nature and of nature's god entitle them."

The phrase "Nature's God" is not a product of traditional religious denominations, but is generally associated with 18th-century Deism. That philosophy centered on what has been called "natural theology," a belief that while a "Creator" started the universe and established the laws of nature, the modern world saw no divine intervention or miracles.

The most famous religious phrase in the Declaration—that people are "endowed by their Creator with certain inalienable rights"—was not included in Jefferson's original draft. He had written that people derive inherent rights form their "equal Creation." The iconic language was added by a small committee, including Benjamin Franklin and John Adams.

"Creator" was a theologically ambiguous word. Most Deists used it, but it was also commonly spoken by the most orthodox religions of the day. Timothy Dwight, a Congregational minister who served as president of Yale College from 1795-1817, delivered a sermon stating that the Bible contained "as full a proof, that Christ is the Creator, as that . . . the Creator is God."

Often overlooked in discussing the Declaration of Independence are two more religious references, both added to its closing paragraph by other delegates in the Continental Congress. The delegates described themselves as "appealing to the Supreme Judge of the world for the rectitude of our intentions," and they affirmed their "firm reliance on the protection of divine Providence."

These phrases were widely regarded as being far more traditionally religious than the earlier language. Ashbel Green, a Presbyterian minister and Jefferson critic who served as chaplain of the House of Representatives in the 1790s, cited these sections to assert that had they not been added, Jefferson would have permitted the American call for independence to be "made without any recognition of the superintending and all disposing providence of God."

But even after the congressional editing, the language of the Declaration wasn't limited to a particular faith. Deliberately designed to be as inclusive as possible, it was a quintessentially American achievement—specific enough to be embraceable by those with orthodox religious views but broad enough to permit each American to feel fully included and equally respected.

George Washington maintained this adroit balance when he became president. In his first inaugural address, written with the assistance of James Madison, Washington declared that it would be "peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe."

Even Jefferson and Madison, often described as believing in a total separation of religion and government, continued the practice of using inclusive religious language. Jefferson urged in his first inaugural, "May that infinite power, which rules the destinies of the universe, lead our councils to what is best," while Madison stated that, "my confidence will under every difficulty be best placed . . . in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations."

The Framers didn't see such nondenominational language as divisive. They believed it was possible—in fact desirable—to have a public expression of religion that is devout, as long as it recognizes and affirms the variety of belief systems that exist in our pluralistic nation.

Mr. Meyerson, a professor of law at the University of Baltimore School of Law, is author of "Endowed by Our Creator: The Birth of Religious Freedom in America," recently published by Yale University Press.

"...the power to control Supreme Court nominations is the grand prize in the coming presidential election. Long after Barack Obama and Mitt Romney fade in our memories, the Supreme Court justices one of them appoints will still be rendering the rulings that determine the future course of our nation."

Necessarily tied to 2012 Presidential and Senate thread, this piece includes a nice summary of some cases where the swing vote actually went conservative. "Swing vote" to some of us means which conservative in name only takes his or her turn to vote with the totally predictable liberal bloc to continue to undermine the American Creed and feed the continuing expansion of government.

Clint Bolick: The Supreme Court Stakes in 2012The replacement of a single conservative justice by President Obama in a second term would turn the court sharply to the left.

By CLINT BOLICK

Many conservatives are angry with Chief Justice John Roberts, whose decisive vote in late June not only sustained a disastrous health-care law. It also interpreted the Constitution to permit Congress to penalize behavior through its taxing power that it cannot control through its power to regulate commerce.

Magnifying the harm is a CBS News report—and informed suspicions from a number of sources—that Chief Justice Roberts initially voted to strike down the law but switched in the face of veiled threats from President Barack Obama and concerns about the court's reputation and his own.

Some conservatives were also disappointed that Chief Justice Roberts joined fellow conservative Justice Anthony Kennedy and the four liberal justices earlier in June in striking down portions of Arizona's immigration law. They considered the ruling a blow against federalism.

The upshot is that Chief Justice Roberts has become a "swing" justice on the Supreme Court—along with Justice Kennedy, who has occupied the swing position held by Justice Sandra Day O'Connor until she was replaced by conservative Justice Samuel Alito in 2006. The court now is composed of three solid conservatives and four solid liberals, with Chief Justice Roberts and Justice Kennedy leaning conservative.

Even that mixture makes the current court the most conservative in nearly a century. But it also means that the replacement of a single conservative justice by President Obama in a second term would turn the court sharply to the left.

The ObamaCare ruling highlights the stakes. Chief Justice Roberts joined the liberal justices in finding that the penalty imposed on individuals who refuse to sign up for government-prescribed health insurance is a permissible tax. But he sided with his fellow conservatives in holding that the mandate to buy insurance itself exceeded Congress's power to regulate interstate commerce. Inactivity, the court held, is not commerce.

By contrast, the liberal justices argued that anything that even indirectly affects commerce (which amounts to everything) can be regulated. With the replacement of one conservative justice by a liberal, congressional power under the Constitution's Commerce Clause will be boundless.

By holding the line in June, then, the conservative majority ensured, at least for now, that the power of the national government remains limited. That portion of the health-care decision continues an important trend in which the court has set boundaries on federal regulatory power that had been erased during the New Deal.

Over the past two decades of its conservative majority, in fact, the court has reined in government power and protected important individual rights in a number of areas, almost always in 5-4 votes divided along conservative/liberal lines. Among them:

• First Amendment. In its Citizens United decision in 2010 and its ruling the next year in Free Enterprise Club v. Bennett, which struck down Arizona's scheme providing public "matching funds" to candidates, the court has protected the right to vigorously participate in political campaigns.

• Second Amendment. The court has recognized an individual right to keep and bear arms, which the four liberal justices would have extinguished, and which now hangs by the thread of a single vote.

• School choice. Last month marked the 10th anniversary of the 5-4 Zelman v. Simmons-Harris ruling upholding the constitutionality of issuing school vouchers that can be used for tuition at parochial schools, among others. This was the case that the court's liberal dissenters preposterously predicted would unleash religious strife akin to that in Bosnia and Northern Ireland.

• Property rights. The conservative majority has ruled that some excessive property regulations—such as forced dedication requirements in return for development permits—are unconstitutional. It has also ruled that regulations that destroy property value—such as ones that essentially forbid development—require compensation. But Justice Kennedy joined the liberal majority in the infamous 2005 Kelo decision upholding the use of eminent domain for private purposes.

• Racial preferences. The court has restricted the use of racial preferences and may forbid them altogether in Fisher v. University of Texas, which will be argued before the court next term. The liberal justices recognize few limits on the use of race for social-engineering purposes.

• Federalism. In several cases, the conservative majority has expanded state autonomy and limited the federal government's power to regulate states. These include Horne v. Flores, upholding Arizona's English-only law in 2009; Chamber of Commerce v. Whiting in 2011, upholding Arizona's law penalizing employers who hire illegal immigrants; and Northwest Austin Utility District v. Holder, a 2009 decision allowing a Texas utility district to opt about of Section 5 of the Voting Rights Act, which requires many states and local entities to obtain Justice Department permission to make any changes affecting voting.

The court's conservative majority so far has endured for 21 years, since Justice Clarence Thomas replaced Thurgood Marshall. Since then, there have been six appointments to the court. None, however, has affected the court's balance, with two conservatives replacing conservatives and four liberals replacing liberals.

That may be about to change. Three justices—liberal Ruth Bader Ginsburg and conservatives Antonin Scalia and Justice Kennedy—will reach their 80s during the next presidential administration. So whoever wins in November likely will have the chance either to reinforce the conservative majority, or to alter the court's balance for the first time in nearly a generation.

The stakes never have been higher. First, because as human longevity increases, lifetime tenure has grown increasingly valuable. The average tenure of a Supreme Court justice today is 25 years—spanning more than six presidential terms. And presidents are catching on, naming ever-younger justices. If the newest justice, Elena Kagan, serves for all of her current life expectancy, she will remain on the court until 2045.

Second, the science of nominating philosophically consistent justices has grown more precise. In the past, presidents from Abraham Lincoln to Franklin Roosevelt to Richard Nixon tried to pack the court with reliable fellow-thinkers, with decidedly mixed success. Dwight Eisenhower famously remarked that his two biggest mistakes both served on the Supreme Court (Earl Warren and William Brennan). John F. Kennedy appointed Byron White, who turned conservative toward the end of his tenure, and George H.W. Bush appointed David Souter, who was liberal from day one.

These days, however, justices are carefully chosen on the basis of long philosophical track records. Indeed, most Supreme Court justices today remain more true to their principles than the presidents who appoint them.

A Republican president may spend like a drunken sailor or destroy capitalism in order to save it, and a Democrat may bail out Wall Street and fail to bring the troops home. But they will never disappoint their respective bases on Supreme Court nominations.

All of this underscores that in terms of lasting importance, the power to control Supreme Court nominations is the grand prize in the coming presidential election. Long after Barack Obama and Mitt Romney fade in our memories, the Supreme Court justices one of them appoints will still be rendering the rulings that determine the future course of our nation.

Mr. Bolick is vice president for litigation at the Goldwater Institute and author of "Two-Fer: Electing a President and a Supreme Court," published in April by the Hoover Institution.

Good stuff. Two quick things, though. A new justice wouldn't necessarily mean the Court shifts ideologically. First, if Justice RBG or Breyer were to retire, a new Obama appointee wouldn't shift the makeup of the USSC all that much. Moreover, the new justice might not be the justice Obama thought he was getting. Two quick examples, though there are more: legend has it that when asked about mistakes made as president, Ike replied that he had made two, "and they were both on the Supreme Court." And, remember all the cries of "not another Souter"? GHWB didn't get the conservative he thought he had on the bench.

Second, despite all of the media wanks talking about Roberts possible switch, it is very common that justices swith views between the conference vote and the final opinion being released.

Ramesh Ponnuru, a senior editor of National Review and leading conservative blogger, wrote that Chief Justice Roberts “acted less like a judge than like a politician, and a slippery one.” Randy Barnett, a Georgetown University law professor and intellectual father of the Commerce Clause argument against the statute, predicted on the Volokh Conspiracy blog that “it’s hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future” (odd, because the Roberts opinion, actually accepting Professor Barnett’s Commerce Clause analysis, has left liberals seriously alarmed about the court’s future direction on congressional power). Clint Bolick, a leading libertarian who advocates aggressive activism — sorry, “engagement” — by the court to shrink government power, wrote in The Wall Street Journal that “the upshot is that Chief Justice Roberts has become a ‘swing’ justice on the Supreme Court” and is no longer a “solid conservative.”

"My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal." --Thomas Jefferson, letter to Samuel Adams Wells, 1819

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks." --Thomas Jefferson, letter to Peter Carr, 1785

"Exactly 50 years ago, in 1962, the Supreme Court agreed to hear another handwritten petition, this one from Clarence Gideon. The court appointed Abe Fortas, a prominent lawyer and future Supreme Court justice, to represent him. The next year, the court decided Gideon v. Wainwright, the landmark decision that said the government must provide lawyers to poor people accused of serious crimes.

Mr. Millbrook may be a less attractive petitioner than Mr. Gideon, who was acquitted at a retrial of charges that he had broken into a pool hall.

It is hard to know what to make of Mr. Millbrook’s lawsuits. He may be a magnet for mistreatment, or he may have a flexible relationship with the truth. Or he may have cried wolf several times before actually encountering one."

On Monday night, the Department of Justice (DOJ) filed a brief asking a federal court to dismiss the lawsuit the House of Representatives filed challenging the President’s invocation of executive privilege in the Operation Fast and Furious case.

The House suit seeks to force the Administration to release documents that it is still withholding from Congress, an issue which was discussed in an earlier Heritage Legal Memorandum.

In the midst of the Watergate crisis, President Nixon told the nation, “If the President does it, that means it’s not illegal.” In a similar fashion, DOJ’s brief argues, in essence, that if the President invokes executive privilege, that means it was a valid assertion and that no court of law should ever be permitted to review the matter, period.

DOJ states repeatedly in the brief that it has made “substantial” efforts to accommodate Congress—providing roughly 7,000 pages of documents, some heavily redacted, in comparison to the roughly 100,000 pages of documents that were provided to DOJ’s inspector general, who also testified that he did not receive all the documents he wanted to review from the Administration—and that “Congress’s legitimate informational interests have been largely satisfied” (as if it were within DOJ’s purview to make such a determination, rather than Congress’s, and that “largely” satisfying Congress’s legitimate needs is enough).

DOJ argues that Congress’s only recourse to resolve this dispute is to use “political tools,” such as the appropriations process or making “its case to the people through the electoral process.”

DOJ contends, “The combination of robust alternative remedies and the historical absence of involvement by the Judiciary have provided incentives for both Branches to work in earnest through the process of negotiation, accommodation, and ultimate resolution,” but that this “process would unravel if courts were available to dictate what information may be demanded or withheld. Judicial intervention would move the Branches toward litigation, not accommodation, and would dramatically alter the separation of powers.”

These are breathtaking arguments that, if adopted, would permit the President to stonewall virtually any congressional inquiry by ignoring subpoenas or invoking executive privilege in an improper fashion to, say, prevent the disclosure of embarrassing information or criminal conduct.

Were a court to adopt DOJ’s argument, which seems highly unlikely given Supreme Court and other precedent, then a President could simply ignore a congressional subpoena or improperly invoke executive privilege, and Congress would be forced to either drop the matter or escalate the conflict by instituting impeachment proceedings, withholding funding of some valuable government service—something significant enough to the get the President’s and the public’s attention—or trying to persuade the public to vote the President out of office (even though the President might be withholding the very information that would enable the public to make an informed decision).

In some situations, those might be superior tools, but the courts should not be closed to Congress in every instance just because it has those other tools. In a statement, House Oversight Committee chairman Darrell Issa (R–CA) said that DOJ’s argument “should trouble Americans who believe the President and the Federal government are not above the law.”

The DOJ brief states that, were a court to exercise jurisdiction here, “then countless other suits are sure to follow, given the volume of document requests issued by dozens of Senate and House Committees that perform oversight functions.”

However, the government acknowledges that in the entire history of our country, only three cases challenging executive privilege have ever been filed and that never before has an Attorney General been held in contempt.

It seems implausible that this trickle of cases is likely to turn into the veritable flood that DOJ envisions. The court is likely to, and should, reject DOJ’s startling argument.

I think the original conception of executive privilege (spelled out in Nixon, but argued for since G. Washington was president), is correct. I think it began to go too far under Clinton (legal issues) and was codified in the Cheney energy taskforce case, which is unfortunate. I disagree with Obama here, but it is another example of the creep of presidential power claims, which tend to build on success and excess of those who came before the sitting one making the claim.

So, are you saying that he can stonewall the OFF investigation with it? That Issa's committee's subpoenas are meaningless? What, if any, are the limits on assertions of EP?

Adding my layman's view into the mix, subject to being informed or corrected here on the forum. )

We all believe in Executive Privilege with limits. The executive should normally be able to get candid advice from his advisers in private. Crafty's question is right on the money with his question, what are those limits. When does a competing interest rise above the importance of protecting EP. It would appear from reading BD's link that this is not entirely settled law. It is a judgment call to decide when a legislative or public right to know rises above this privilege.

My understanding in the case of the Cheney energy task force is that the Vice President was getting candid advice from individuals and a group of contacts and industry experts, up to the point perhaps of writing parts of legislation that I think never got passed. What happened behind closed doors IMO isn't crucial because the end product, their written proposal or bill is public, can be read, argued, amended, introduced, not introduced, passed or voted down. If some crony wanted $100 million in the bill to go to Exxon or Haliburton, it would be in the bill; we don't need to subpoena the parties or break any secrecy to find that out. Not at all similar to Fast and Furious IMHO.

Same question was asked about Hillary's healthcare task force, though as First Lady she was not really an Executive Branch official.

Not executive branch, but a similar question would be to ask who advised and wrote the clauses and inner workings of 'Obamacare' for former House Speaker Nancy Pelosi. Do we have a right to know that? Maybe not, just a right to oppose the bill.

What about the quesiton of the White House sending out Susan Rice to 5 major Sunday shows to essentially disseminate false information to the American people about the attack Benghazi. Some of us would like to know who sent her out there to send out a knowingly false message and why. Are the discussions protected in secrecy if the intent was to mislead?

Executive Privilege in Operation Fast and Furious: Is there is a legitimate and compelling public interest in knowing who authorized the sale/transport of these weapons? Does it rise above the principle of EP? How else would we prevent this or something worse from happening again? Congress appropriated the funds used but not the operation. They were not fully informed prior, during or after the use of public funds. Laws were likely broken (I believe) and people died. An international alliance was put in jeopardy. What is our right to know, through the investigative committees of the House of Representatives?

The irony of asserting Executive Privilege in Operation Fast and Furious is that we were being told that no one in the Attorney General's Office or White House had any knowledge, documents or discussions whatsoever on this operation. The assertion of privilege would seem to refute that. Either they did know and authorized the operation or else the assertion is frivolous (“transparently invalid”) it would seem to me. The assertion is designed to forestall the investigation past election day or indefinitely.

The 255 to 67 contempt vote including a majority within the President's own party voting against the White House is telling.

I'll have to get back to you on executive privilege. I'm working on a project that demands attention. Related to this, I give you this letter, which may interest those of concerned/worried/thoughtful about Posse Comitatus/martial law. The author is now dean at Georgetown Law. Beth Nolan, mentioned in footnote 1 was OLC and former White House Counsel.